Classical pianist Jayson Gillham has lost his discrimination case against the Melbourne Symphony Orchestra (MSO) after the Federal Court found that workplace protections did not extend to him due to his status as an independent contractor. Justice Graeme Hill ruled on Friday that the orchestra acted legitimately to protect its business and reputation.
Background of the Case
Gillham sued the MSO over a Melbourne concert scheduled for 15 August 2024, which the orchestra cancelled. He claimed the cancellation was an attempt to silence him over his political views regarding Israeli attacks on Gaza. Four days earlier, during a performance on 11 August, Gillham played a piece called Witness by Connor D’Netto, dedicating it to Palestinian journalists killed by Israeli forces. In his introduction, he stated that more than 100 Palestinian journalists had been killed and that targeting journalists in a conflict is a war crime under international law.
Court Findings
Justice Hill determined that the “political content” of Gillham’s remarks was not a “substantial and operative reason” for the MSO’s actions. Instead, he found that the orchestra acted within the law to protect its own business and reputation. Hill also noted a “custom or practice” that performers should not make statements on sensitive political or social issues from the stage without permission.
“Although these events are bound up with the Israel-Gaza conflict, it is not any part of my role to enter upon those matters of considerable public controversy,” Hill said. “I find that the MSO would have taken the same actions if Mr Gillham had expressed a political belief in support of Israel, or if Mr Gillham had made statements on any other topic that had the same impact or anticipated impact on the MSO’s business and reputation.”
Legal Arguments
Gillham’s barrister, Sheryn Omeri KC, argued that nothing in the MSO contract prevented Gillham from making the statement. Justin Bourke KC, representing the MSO, countered that Gillham was using the MSO’s stage and was not permitted to share personal views on the “most hotly contested controversial issue around the world.”
Gillham alleged four adverse actions under Section 340 of the Fair Work Act: cancelling his show, emailing attendees to announce the cancellation and apologising for his statements, attempting to impose conditions for the 15 August recital (requiring no physical or verbal statement from the stage), and failing to apologise publicly. The MSO admitted that cancelling the show was an adverse action, but Hill found the other three actions did not breach the Act, as they occurred after his independent contract was terminated.
MSO’s Position and Attempted Reinstatement
The court heard that on 14 August, MSO managing director Sophie Galaise emailed the leadership group suggesting a “backflip” to re-invite Gillham, with a joint statement acknowledging an error. However, Gillham rejected the re-invitation. The MSO subsequently issued a statement on the day of the scheduled concert, citing “safety concerns” and acknowledging an error in asking Gillham to step back.
“The MSO earlier today sought independent security advice considering events that have occurred since last Sunday’s concert with Jayson Gillham,” the statement said. “In light of this advice, the MSO board and management had no option but to cancel the concert. … The MSO acknowledges that an error was made in asking Jayson to step back from his performance on Thursday 15 August.”
Impact and Next Steps
Justice Hill ruled that the Victorian Equal Opportunity Act is not a workplace law, as it would conflict with the Fair Work Act. He also found that the MSO had a policy of not expressing support for either side of the Israel-Gaza conflict. Gillham’s lawyers said they would consider applying for a cross order under section 570 of the Fair Work Act, while MSO’s lawyers indicated they may seek costs.
MSO chair Edgar Myer said in a statement: “We would like to acknowledge the dedication and professionalism of our musicians and staff who have continued to deliver brilliant musical experiences, despite the disruption and distraction that came with defending these legal proceedings. We hope that we can now put this matter behind us and focus on our music.”
